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SIU Director’s Report - Case # 19-PCI-308

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into serious injuries sustained by a 41-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 21, 2019, the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP advised that Corunna OPP police officers responded to a residence in Corunna for a 911 call. The caller reported hearing screaming from the address. Upon the arrival of the police it was determined that the Complainant was in a domestic dispute with his mother. The police officers arrested the Complainant for trespassing and, as result, he was taken to the ground. After his arrest, the Complainant was taken to Corunna OPP Detachment where he complained of a sore arm. The Complainant was transported to Bluewater Health Hospital (BHH) where he was diagnosed with a fractured upper right arm.

The Complainant was subsequently released from hospital into the care of the police and taken to Petrolia OPP Detachment and held until sober.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

41-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed



Subject Officers

SO Did not consent to interview or to provide notes, as is the subject officer’s legal right


Evidence

The Scene

This incident occurred on the driveway of the residence of the CW in Corunna.

Video/Audio/Photographic Evidence


OPP Corunna Cell Video


The video recording had no bearing on this case since it did not capture the injury to the Complainant.

Police Communications Recordings

On December 21, 2019 at:

1:24:01 a.m., the CW called 911 to advise police her son, the Complainant, had been drinking liquor;

1:24:28 a.m., the Complainant was heard swearing in the background;

1:24:47 a.m., the CW reported to police there were no weapons in the house;

1:27:23 a.m., the SO, WO #1 and WO #2, were informed about the call;

1:38:22 a.m., the CW reported to police the Complainant made the threat “if they [police] come he wants suicide by cop”;

1:39:41 a.m., the CW advised she would meet police at the front door;

1:40:18 a.m., police officers were in the area of the complaint;

1:47:07 a.m., the SO advised dispatcher they were on scene;

2:06:26 a.m., a police officer advised dispatcher the Complainant was in custody about to be transported to Corunna OPP Detachment;

2:29:43 a.m., an ambulance was dispatched to the detachment because the Complainant was complaining of a sore arm; and

2:48:05 a.m., the Complainant was transported by ambulance to the hospital in Sarnia.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  •  Notes of the witness officers;
  • OPP Event Details;
  • Communication recordings
  • Cell video recording;
  • OPP General Report;
  • OPP Prisoner Custody Report-Corunna;
  • OPP Prisoner Custody Report-Petrolia;
  • OPP Prisoner Security Check-Petrolia;
  • Policy - Arrest and Detention; and
  • Policy - Use of Force.

Materials obtained from Other Sources

The SIU also obtained the Complainant’s medical records from BHH.

Incident Narrative

The material events in question are apparent on the weight of the evidence collected by the SIU, which included statements from the Complainant and two other officers who were present and participated in the Complainant’s arrest. As was his legal right, the SO did not provide a statement to the SIU. There were no independent eyewitnesses to the Complainant’s arrest.

At about 1:45 a.m. on December 21, 2019, the SO, in the company of WO #1 and WO #2, arrived at the CW’s address. They were there following a call to police by the CW, the Complainant’s mother, reporting a domestic disturbance at her residence. The Complainant had been drinking alcohol and was acting up.

The CW told the officers she wished her son removed from the premises. The officers spoke with the Complainant, who was outside on the driveway of the home, in an effort to convince him to leave. When he refused to do so and became belligerent with the officers, the decision was made to arrest him for trespassing.

WO #2 took the Complainant to the ground on the driveway. The Complainant, while prone on the ground, resisted the officers’ efforts by refusing to release his arms from underneath his torso to be handcuffed. In relatively short order, however, the SO was able to wrench the Complainant’s right arm free and bring it around his back whereupon WO #2, who had a hold of the Complainant’s left arm, affixed the handcuffs.

Following the arrest, the Complainant was transported to the OPP’s Corunna Detachment and, shortly thereafter, to hospital when he complained of pain. At BHH, the Complainant was diagnosed and treated for a fracture, and released back into the custody of the police.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant on premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

On December 21, 2019, the Complainant suffered a fracture to his right upper arm while being arrested at an address in Corunna by several OPP officers. The SO was among the arresting officers and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used on the job provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. After repeated requests of the Complainant that he remove himself from the CW’s property went unheeded, he was subject to lawful arrest under section 9(1) of the Trespass to Property Act.

Thereafter, there is no indication in the evidence of any excessive force used by the officers to gain control of the Complainant and effect his arrest. By the time the Complainant was forced to the ground, his open hostility had made it clear that he would not succumb peacefully to his arrest. In the circumstances, I find no fault with the Complainant’s takedown at the hands of WO #2; once on the ground, the officers would be better positioned to deal with any continuing resistance by the Complainant.

Indeed, the Complainant struggled with the officers while prone on the ground, refusing to surrender his arms to be handcuffed. The officers, however, were eventually able to overcome the Complainant’s resistance and wrestle his arms free. No strikes of any kind were delivered by the officers. While it is regrettable that the Complainant suffered a broken right arm, inflicted as the SO forced it free from under the Complainant’s body and positioned it behind his back, I am unable to reasonably conclude that the force used by the officer was other than a measured and proportional response in the circumstances made necessary in light of the Complainant’s resistance.

In the result, as there are no reasonable grounds to believe that the SO conducted himself unlawfully at any time during his engagement with the Complainant notwithstanding the Complainant’s injury, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: May 11, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit